Gig For Business Agreement
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By applying to become a GIG Car Share Business Member (the “Gig Business Member”, “you” or “Customer”) and to open a Gig business account (the “Gig Business Account”) or by providing any GIG Car Share services or features (collectively, the “Gig Services”) to its employees (each an “Employee”, and collectively, the “Employees”), Customer agrees that it has had an opportunity to review this Agreement in full and to consult advisors (including Customer’s attorney) as Customer may determine appropriate, and agree to comply with, the current terms of this Gig Master Services Agreement (the “Agreement”) and the GIG Car Share Member Agreement located at https://gigcarshare.com/member-agreement/ (the “Member Agreement”). Customer confirms that it has not relied on any advice, information, representation, assertion, guarantee, warranty, collateral contract, or other assurance, except those expressly set out in this Agreement and in the Member Agreement.
This Agreement is a contract between Customer and A3 Mobility LLC (“A3M”, “we”, “our” or “us”) as the provider of Gig Services. The terms and conditions provided in this Agreement apply to Customer’s Employees’ use of any Gig Services (as better described in the Member Agreement) and the GIG Car Share vehicles (each a “Vehicle”, and collectively, the “Vehicles”), including their membership in such program (their “Membership”). Customer agrees to comply with this Agreement, and to procure that each of its Employees comply with the Member Agreement, as each may be amended from time to time, each time its Employees use the Gig Services.
Customer’s fees shall be as set forth in Customer’s applicable Customer Proposal.
Services; Customer Responsibilities.
We will provide the Gig Services to each Employee that creates a Gig Member Account (as defined in the Member Agreement) to which Customer provides access to the Gig Services under the Customer’s Gig master account (the “Customer Account”) in accordance with this Agreement and the Member Agreement. Notwithstanding the foregoing, we reserve the right to refuse or limit any Employee’s use of the Gig Services, as provided in the Member Agreement.
2. Employee Information
For each Employee that creates a Gig Member Account under Customer’s Account, Customer shall promptly provide the following information (the “Employee Information”:
· Mobile phone number (used by Employee to access the Gig Services);
· Email address (used by Employee to access the Gig Services);
· First and Last Name;
· Date of Birth;
· Mailing address;
· Email address;
· Phone Number;
· Driver's License number and expiration date.
3. Compliance by Employees
As a condition to providing Employees access to the Customer Account, Customer agrees to require its Employees and officers to comply with this Agreement and the Member Agreement.
The term of this Agreement (the “Term”) shall commence on the Effective Date. This Agreement will continue in full force and effect until terminated as set forth below. We may terminate this Agreement at any time with or without cause upon giving not less than thirty (30) days written notice to you. We may immediately terminate this Agreement for material breach if you fail to cure the breach within ten (10) days after prior written notice from us, unless such breach cannot reasonably be cured within ten (10) days and you immediately commence to cure and diligently prosecute such cure to completion thereafter.
Representations and Warranties
You represent and warrant to us that you:
· have full right, power, and authority, including holding all necessary licenses and permits required by applicable governmental authorities (and all such licenses and permits are in full force and effect), to enter into and perform this Agreement without the consent of any third party (including any consents required from your Employees in order to provide us with the Employee Information);
· will maintain high standards of professionalism and comply with all applicable laws and regulations applicable to your performance of your obligations under this Agreement; and
· will not, in the course of performing this Agreement, infringe, misappropriate or otherwise violate any intellectual property rights of any third party.
Without restricting the other remedies available to us, and to the fullest extent permitted by law, you agree to indemnify, defend and hold harmless us, our affiliates, officers, directors, employees, agents, and customers from and against any and all losses, claims, suits or liabilities (each a “Claim”) arising out of or in connection with: (i) the Employees’ use of the Vehicles, other than to the extent arising from our intentional misconduct or gross negligence; (ii) any breach of any of your representation, warranty, covenant, or obligation in this Agreement, (iii) any breach of any representation, warranty, covenant, or obligation of an Employee under the Member Agreement, (iv) the failure by you to comply with all applicable laws and regulations in the performance of its obligations under this Agreement, or (v) any intentional misconduct or gross negligence by you or any Employee. In the event of any Claim for which we are or may be entitled to indemnification hereunder, you agree to be solely responsible for defending the Claim, subject to our right to participate with counsel of our own choosing, at your own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from the Claim against us, provided that you will not agree to any settlement that imposes any obligation or liability on us without our prior written consent.
For the duration of this Agreement, you shall maintain appropriate insurance, including:
· Commercial general liability insurance, in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and Five Million Dollars ($5,000,000.00) in the aggregate for bodily injury, personal injury and property damage as those terms are defined in standard form commercial general liability policies;
· Commercial automobile liability insurance covering the use and operation of Vehicles by Employees in such amounts and with such coverage as required by applicable laws and regulations; and
· Workers’ compensation insurance with statutory limits, as required by the State of California (including pursuant to California Labor §3700 et seq.) and any other state having jurisdiction over your Employees, Employer’s Liability Insurance of not less than $1,000,000 per claim.
Upon request, you shall furnish to us appropriate certificates of insurance. The certificates of insurance shall (i) name us as an additional insured and attach the additional insured endorsement and (ii) indicate that the insurance waives its subrogation rights against us and attach the waiver of subrogation. The insurance required pursuant to this Section VIII shall include a waiver of subrogation stating that the insurer waives all rights of subrogation against us, our officials and our employees.
You further agree that if we are required to file a claim against our insurance carrier in connection with a Claim arising out of an Employee’s use of the Vehicles, you shall reimburse to us all fees, costs and expenses incurred by us in connection therewith.
Limitation of Liability.
WE ARE NOT LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES DIRECTLY OR INDIRECTLY ARISING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT, THE MEMBER AGREEMENT YOUR EMPLOYEES’ MEMBERSHIP, THE GIG SERVICES (INCLUDING THE VEHICLES, RESERVATIONS, YOUR EMPLOYEES’ ACCOUNTS, THE WEBSITE, THE MOBILE APP, AND MEMBER SUPPORT), INCLUDING LOSS OF PROFIT OR REVENUE, FINANCIAL LOSS, LOSS OF BUSINESS OPPORTUNITIES, BREACH OF PRIVACY OR SECURITY, PROPERTY DAMAGE, PERSONAL INJURY OR ANY OTHER FORESEEABLE OR UNFORESEEABLE LOSS, NO MATTER HOW IT WAS CAUSED, EVEN IF WE WERE NEGLIGENT OR WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; FOR ANY ERROR OR OMISSION IN THE OPERATION OR MANAGEMENT IN RESPECT OF ANY PART OF THE GIG SERVICES; FOR ANY LOST, STOLEN, DAMAGED, OR EXPIRED IDENTIFIERS, PASSWORDS, CODES, BENEFITS, GIG CARDS, DISCOUNTS, REBATES, CREDITS OR PROMOTIONS; FOR THE DENIAL, RESTRICTION, SUSPENSION, DISRUPTION OR INACCESSIBILITY OF YOUR EMPLOYEES’ MEMBERSHIP OR YOUR AND/OR THEIR PARTICIPATION IN ANY PART OF THE GIG SERVICES; OR FOR ANY LOSS, DAMAGE, INJURY OR DEATH IN RELATION TO ANY EMPLOYEE OR THIRD PARTY ARISING FROM THE USE OF A VEHICLE, LOSS OR DAMAGE INCURRED BY YOU AND/OR YOUR EMPLOYEES.
· Each party hereto (the “Disclosing Party”) may disclose to the other party hereto (the “Recipient”) certain information pursuant to this Agreement, which the Disclosing Party designates as being "CONFIDENTIAL" (or with words of similar import) or which, under the circumstances surrounding the disclosure, should be treated as confidential, regardless of whether such information is provided in tangible form (the “Confidential Information”). Without limiting the foregoing, Confidential Information includes, but is not limited to, pricing information, marketing plans, strategies, competitive information, and the terms and conditions of this Agreement. In addition, any equipment, personal property, writings, drawings, photographs, models and samples furnished, used or displayed by the Disclosing Party shall be deemed confidential, and shall remain the Disclosing Party’s property, and shall be returned by the Recipient to the Disclosing Party upon the Disclosing Party’s request.
· Upon the Disclosing Party’s request at any time and upon any termination or expiration of this Agreement, the Recipient will promptly (i) return to the Discloser or, if so directed by the Discloser, destroy all tangible embodiments of the Confidential Information (in every form and medium), (ii) permanently erase all electronic files containing or summarizing any Confidential Information, and (iii) provide a certification by an officer of the Recipient to the Discloser that the Recipient has fully complied with the foregoing obligations.
· Except as may be necessary for performance of this Agreement, neither party shall use or disclose to any third party any information concerning this Agreement or the Disclosing Party’s business. During the term of this Agreement and at all times thereafter, each party agrees to hold the Confidential Information of the other party in confidence and not to make such Confidential Information available in any form to any third party except to the Recipient's employees, officers, directors, consultants or independent contractors who have a need-to-know such Confidential Information and who are parties to an agreement with the Recipient which prohibits the disclosure of Confidential Information (each a “Permitted Person”), or to use such Confidential Information for any purpose other than the implementation of this Agreement. Each party further agrees to take all reasonable steps, which are no less than the steps it uses to safeguard its own Confidential Information, to prevent any unauthorized use or disclosure of any Confidential Information of the other party and to ensure that such Confidential Information is not disclosed or distributed by any Permitted Person in violation of the provisions of this Agreement.
· Any information in the public domain at the time it was disclosed or has entered the public domain through no fault of the Recipient; was known to the Recipient, without restriction, at the time of disclosure, as demonstrated to be in existence at the time of disclosure; was disclosed with the prior written approval of the Disclosing Party; was independently developed by the Recipient without any use of the Disclosing Party’s Information, as demonstrated at the time of such independent development, and upon notice of the development to the Disclosing Party; was obtained by the Recipient from a third party, without an obligation to keep the information confidential, or pursuant to court or government order, shall not be deemed Confidential Information.
· Recipient may disclose Confidential Information, without violating the obligations of this Section IX, to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the Recipient provides the Disclosing Party reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist the Disclosing Party in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued.
You will not, without the prior written approval of Gig on a case-by-case basis, which Gig may withhold in its sole discretion, make any use or proposed use of Gig’s or its affiliates’ names or trademarks, service marks or logos, including promotional or marketing material (collectively, the “Publicity Materials”). Notwithstanding anything to the contrary, including if Gig approves the use of any Publicity Materials, you will not make any statements or representations that Gig or its affiliates endorses you or you products or services in any way. In the event that Gig approves the use of Publicity Materials, you will use best efforts to ensure that such Publicity Materials remain current and accurate, and if at any time Gig notifies you that Gig objects to the use of such Publicity Materials for any reason, you shall immediately remedy the use to the satisfaction of Gig or terminate such use.
Relation of Parties
Each party shall at all times act in the capacity of an independent contractor, and not as an employee, partner, joint venturer, principal, or agent or representative of the other. Neither party shall have the right to be obligated or bind any other party in any manner whatsoever with respect to any third party, and nothing contained in this Agreement shall give or is intended to give any rights of any kind to any third party.
Governing Law; Venue. This Agreement is governed by the laws of the State of California without reference to any conflict of laws principles that would require the application of the laws of any other jurisdiction. Customer irrevocably consents to the personal jurisdiction of the federal courts for the Northern District of California and the state courts located in San Francisco County, California for any suit or action arising from or related to this Agreement, and waives any right Customer may have to object to the venue of such courts. Customer further agrees that these courts will have exclusive jurisdiction over any such suit or action initiated by Customer against A3M.
Legal Fees. The prevailing party in any litigation between the parties relating to this Agreement will be entitled to recover its reasonable attorneys’ fees and court costs, in addition to any other relief that it may be awarded.
Severability. If any of the terms and conditions in this Agreement are found unlawful, void, or for any reason unenforceable, then that provision will be considered severable from the remaining terms and conditions of this Agreement, and will not affect the validity and enforceability of the remaining provisions.
No Assignment. This Agreement and Customer’s rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by Customer without A3M’s express prior written consent. Subject to the foregoing, this Agreement inures to the benefit of and shall be binding on the Customer’s permitted assignees, transferees and successors. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void.
No Third Party Beneficiaries. You acknowledge that this Agreement and your Gig Business Account are for your exclusive benefit and convenience. Neither can be transferred to any other person or entity and no other person or entity may claim rights under this Agreement or through your Gig Business Account. Nothing contained herein shall be construed as granting, vesting, creating or conferring any right of action upon any other third party. This provision is not intended to limit or impair the rights that any person may have under applicable Federal statutes.
Notices. All notices, consents, requests, approvals, demands and determinations required or permitted under this Agreement (other than routine operational communications), will be in writing and will be deemed duly given and received upon actual receipt (or independent confirmation thereof) by the following designees:
In the case of A3M:
A3 Mobility LLC
c/o AAA Northern California, Nevada & Utah
1277 Treat Blvd., Suite 1000
Walnut Creek, CA 94597
with a copy to:
AAA Northern California, Nevada & Utah
1277 Treat Blvd., Suite 1000
Walnut Creek, CA 94597
ATTN: Legal Department
In the case of Customer: As provided in the Proposal
A party may from time to time change its address or designee for notification purposes by giving the other prior written notice of the new address or designee and the date upon which it will become effective.
Remedies. A3M’s remedies for any breach of this Agreement by Customer will include damages, injunctive relief, specific performance, and restitution. Customer acknowledges that any breach of this Agreement by Customer would cause irreparable injury to A3M for which monetary damages would not be an adequate remedy and, therefore, A3M will be entitled to injunctive relief (including specific performance). The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
Waiver. No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement, and signed by the party waiving such right. No delay or omission by us to exercise any right, remedy, power, privilege, or condition in enforcing any term or condition of this Agreement, or act, omission or course of dealing with you, shall impair any such right, remedy, power, privilege, or condition or be construed to be a waiver thereof. Any waiver by us of any covenant, condition, or agreement to be performed by you shall not be deemed to be a waiver of any future occasion. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
Construction. Section headings are included in this Agreement merely for convenience of reference; they are not to be considered part of this Agreement or used in the interpretation of this Agreement. When used in this Agreement, “including” means “including without limitation.” Whenever A3M’s consent or approval is required under this Agreement, A3M may grant or deny its consent or approval in its sole and absolute discretion. No rule of strict construction will be applied in the interpretation or construction of this Agreement.
Amendments. You agree that we may amend, supplement or replace this Agreement or any part of it (including each Employee’s applicable Member Agreement) at any time (a “Change”). You agree that we may notify you of any Change to this Agreement by any reasonable means, including by the email on your Gig Business Account. You acknowledge that your continued use, or your Employee’s continued use of the Gig Services under your Gig Business Account, after the implementation of any Change will constitute your acceptance of this Agreement.
Entire Agreement. This Agreement (and the documents considered as part of this Agreement) constitutes a single, integrated, written contract expressing the entire agreement between you and us relative to the subject matter hereof. No covenants, agreements, representations, or warranties of any kind whatsoever have been made by you or by us hereto, except as provided for herein.
[END OF GIG FOR BUSINESS AGREEMENT]